A fatal shooting led to challenges to one accused's conviction and two co-accused's acquittal. The Court rejected private defence and grave and sudden provocation, affirmed the murder and Arms Act convictions and sentences, and declined to disturb the acquittals. Both appeals were dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment reserved on : 16/12/2022 Judgment delivered on : 02/01/2023
Criminal Appeal No. 1790 of 2018
---- Appellant
Versus
---- Respondent For Appellant : Mr. Surendra Singh, Senior Advocate with Mr. N. Naha Roy, Advocate For Respondent/State : Mr. Arjit Tiwari, Panel Lawyer
and
Acquittal Appeal No. 184 of 2019
Versus
---- Respondents
For Appellant/Complainant : Mr. Umakant Singh Chandel, Advocate For Respondent No. 1 & 2 : None For Respondent No.3/State: Mr. Arjit Tiwari, Panel Lawyer
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DB: Hon’ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Rakesh Mohan Pandey
C.A.V Judgment
Rakesh Mohan Pandey, J.
1. Both the cases are arising out of Sessions Trial No. 126/2016 decided by VIIIth Additional Sessions Judge, Raipur (C.G.) dated 31.10.2018, whereby Appellant Mohd. Tanzeel Raza @ Monu (appellant in Criminal Appeal No. 1790/2018 hereinafter appellant), Washim Pasa (respondent no. 1 in Acquittal Appeal hereinafter respondent no. 1) and Abid Khan (respondent No. 2 in Acquittal Appeal hereinafter respondent no. 2) were tried for the offence punishable under Section 302 read with Section 34 of the I.P.C. and Section 25(1)(b) and 27(1) of the Arms Act for committing murder of Sumit Rakshel. The appellant was convicted under Section 302 of the I.P.C. and sentenced to undergo imprisonment for life with fine of Rs.500/-, in default of payment of fine to further undergo R.I. for one month; and under Sections 25(1)(b) & 27(1) of the Arms Act and sentenced to undergo R.I. for three years with fine of Rs.500/-, in default of payment of fine to further undergo R.I. for one month, it is also directed that both the sentences shall run concurrently, whereas other two accused persons i.e. respondent no. 1 and 2 were acquitted of the charges by the learned trial Court.
2. Appellant has preferred Criminal Appeal No. 1790/2018 against his conviction, whereas father of deceased namely Annu @ Shrawan Rakshel has preferred Acquittal Appeal No. 184/2019 against acquittal of respondent no. 1 and 2.
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3. As both the appeals are arising out of same Sessions Trial No. 126/2016, therefore, both the appeals have been heard together and are being disposed of by this common judgment.
4. The brief facts of the case are as under :-
On 31.03.2016 at around 09:15 PM deceased - Sumit Rakshel along with his friend namely Golu Rao (PW-1), Neeraj Sonkar (PW-4), Arun Yadav (PW-6) and Tijauram Baghel (PW-9) were talking to each other in front of the house of Tijauram Baghel and at the same time appellant along with respondent no. 1 and 2 came there and on account of previous enmity, fired three gun shots over neck, chest and ribs of the deceased Sumit Rakshel. The deceased succumbed to the injuries in the Hospital. On the basis of information given by Annu @ Shrawan Rakshel (PW-3) Merg Intimation was recorded vide Ex-P/2. The police reached to the spot and recorded Dehatinalishi vide Ex.P/3. Thereafter, the F.I.R. was registered vide Ex.- P/15 at 11:00 PM on the same date. The dead body of the deceased was sent for postmortem and it was conducted by Dr. S.K. Bagh (PW-18) and his report is Ex.-P/18. The memorandum statement of appellant was recorded on 07.04.2016 vide Ex.-P/9. On the basis of memorandum of the appellant, knife was recovered from dickey of Activa-Bike vide Ex.-P/10. Pistol used in the incident was seized from the spot having barrel sight 7.65 KF, three empty shell and one live bullet were seized from the place of incident vide Ex.-P/11. Ballistics report was also produced before the trial Court vide Ex.-P/51. Blood sample was taken from the spot. Seized articles were sent for FSL and its report is Ex.-P/50. The police after completion of the investigation, filed charge-
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sheet for the offence punishable under Section 302 read with Section 34 of the I.P.C. and Sections 25 & 27 of the Arms Act against the appellant and respondent no. 1 and 2.
5. The learned trial Court framed the charge for offence punishable under Section 302 read with Section 34 of the I.P.C. & Sections 25 & 27 of the Arms Act against the appellant and respondent no. 1 and 2, who abjured their guilt, pleaded non-guilty and entered into defence.
6. Prosecution examined as many as 19 witnesses and exhibited 51 documents. The defence examined 02 witnesses and exhibited documents D/1 to D/9.
7. The learned trial Court after appreciation of oral and documentary evidence convicted the appellant as mentioned above and acquitted respondent no. 1 and 2 from all the charges.
8. Learned Senior Counsel Mr. Surendra Singh, appearing for appellant Mohd. Tanzeel Raza @ Monu, would vehemently submit that the knife injury was inflicted over abdomen of the appellant and he has fired the gun shot as an exercise of his right of private defence. He would further submit that a counter report was lodged by the appellant against the relatives/friends of the deceased and thus, there was a case and cross-case. His last submission would be that if the entire prosecution is accepted in its entirety the offence committed by the appellant would not travel beyond Section 304 Part-I or Part-II of the I.P.C. as the alleged act was result of grave and sudden provocation without premeditation and the act of the appellant would fall under Exception 1 of Section 300 of the I.P.C. Thus, he would pray for acquittal of appellant Mohd. Tanzeel Raza @ Monu.
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9. On the other hand, Mr. Arjit Tiwari, learned Panel Lawyer appearing for the State, would submit that the case of the prosecution rests upon evidence of eyewitnesses namely Golu Rao (PW-1), Neeraj Sonkar (PW-4) and Arun Yadav (PW-6) who have supported the prosecution case and have stood firm even in their cross-examination. He would further submit that Ballistics report (Ex.-P/51) clarifies that empty cartridges which were recovered from the place of incident, were fired from the country made pistol used by appellant. His next contention would be that the appellant has failed to give any evidence on record to establish that there was a case and cross-case, and any injury was sustained by the appellant during the course of incident which extended exercise of right to private self defence to the appellant. Further, he would support the judgment passed by the learned trial Court.
10. Mr. Umakant Singh Chandel, learned counsel appearing for complainant Annu @ Shrawan Rakshel in acquittal appeal, would submit that there was common intention of all the accused persons and in furtherance of their common intention Sumit Rakshel was murdered. He would further submit that eyewitnesses have supported the case of the prosecution and they have named respondent no. 1 and 2 too who were present at the time of incident and their active participation in the occurrence cannot be ignored. He would further submit that the learned trial Court has committed error of law by acquitting the two accused persons (Respondent no. 1 and 2) and thus, he would pray to allow the acquittal appeal.
11. Learned counsel for the State in response to the submission made by
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Mr. Umakant Singh Chandel would submit that except mere presence of private respondents of acquittal appeal, the witnesses have not stated that the respondent no. 1 and 2 have attributed any overt act at the time of incident. He would further submit that in the evidence of eyewitnesses, there is nothing substantial against the acquitted persons. He would also submit that the learned trial Court after proper scrutiny of the evidences, acquitted the respondent No. 1 and 2, thus, the acquittal appeal deserves to be dismissed.
12. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the record with utmost circumspection.
13. Three questions arise for consideration :-
Answer to Question No. (i):
14. The learned trial Court has recorded a finding of homicidal death of Sumit Rakshel relying upon the evidence of Dr. S.K. Bagh (PW-18) who conducted the postmortem and his report Ex.-P/18 and according to his evidence cause of death of the deceased was three gun shots fired on him. The finding of homicidal death recorded by the learned trial Court is a finding of fact based upon the substantial evidence which is neither arbitrary nor contrary to the evidence. Hence, it is held that the death of the deceased i.e. Sumit Rakshel was homicidal in
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nature and the finding recorded by the learned trial Court in this regard is hereby affirmed.
With regard to Question No. (ii):
15. We deem it fit to scrutinize the evidences in light of the submissions made by respective counsels and it would be advantageous to go through the oral as well as documentary evidences led by the parties before the learned trial Court.
16. PW-1 Golu Rao is an eyewitness to the incident. In examination-inchief, he has stated that while he was in company of the deceased Sumit Rakshel, the appellant and respondent no. 1 and 2 came there and they shook hands and thereafter appellant fired three gun shots to the deceased Sumit Rakshel over chest, neck and ribs. He has further stated that after sustaining gun shots, Sumit Rakshel fell down and he ran away due to fear. This witness has not fully supported the case of the prosecution, therefore, he was declared hostile and leading questions were asked by the prosecution, where he has admitted that he and one Neeraj Sonkar were called by the deceased to take one motor-pump and when they were talking, the appellant reached there on his Activa Bike. PW-1 has clarified that appellant and respondent no. 1 and 2 had come to the spot on same Activa. In para-6, PW-1 has denied that there was any dispute between the deceased and appellant. In para-9, he has stated that during the course of treatment deceased Sumit Rakshel died in Ramkrishna Hospital. In para-13, he has stated that when he reached the house of deceased Sumit Rakshel at about 06:10 or 06:15 pm, Arun, Sumit and Neeraj Sonkar were present. He has admitted the fact that many cases were
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registered against the deceased. This witness has denied the suggestion given by the defence counsel to the effect that any knife injury was inflicted to the appellant. In para-32, this witness has clearly stated that the names of respondent no. 1 and 2 were not narrated by him to the police. In para-35, he has stated that when he reached the spot, deceased Sumit had already sustained the gun shot injury and while they were going to the police station, they saw the appellant in injured condition near the police station.
The evidence of this witness (PW-1) reveals that the deceased was near his house and at that time he was in the company of his friends Neeraj Sonkar (PW-4) and Arun Yadav (PW-6) at about 0606:30 pm and at the same time the appellant reached there and opened fire. This witness has not stated anything against respondent No. 1 & 2.
17. PW-2 Rishabh Rakshel is the brother of the deceased. He has stated that on the date of incident at about 09:45-10.00 pm, the appellant along with acquitted persons and his brother smoke ganja and thereafter, the appellant fired three gun shots over his brother. He has further stated that thereafter the appellant came towards him, fired 2-3 gun shots, but his pistol got locked and then the appellant along with his friends fled away from the spot. In para-12 of the crossexamination, he has admitted that he has not seen anyone firing towards his brother.
From the above piece of evidence, it appears that this witness is not an eyewitness.
18. PW-3 Annu @ Shrawan Rakshel is the father of the deceased.
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According to this witness at about 09:45-10:00 pm, he heard sound of gun shots and when he reached near house of Tijauram (PW-9), he saw that the appellant was firing gun shot to his son and thereafter the appellant along with respondent no. 1 and 2 fled away from the spot. In cross-examination, he was confronted with his statement recorded under Section 161 of the Cr.P.C., where he had not given any live detail of the incident as he was not an eyewitness; therefore, it appears that there is exaggeration in his evidence. Thus, this witness cannot be treated as an eyewitness; however no questions were put to this witness regarding injuries sustained by the appellant during the incident.
19. PW-4 Neeraj Sonkar is an eyewitness who was present at the time of incident along with the deceased. He has stated that on 31.03.2016 at about 09:30-10:30 pm, he was in the company of the deceased along with Golu Rao (PW-1) and Arun Yadav (PW-6) and at the same time, appellant, respondent no. 1 and 2 came there and thereafter the appellant took out his pistol, and opened fire upon the deceased. He has further stated that respondent no. 1 and 2 were on their Activa Bike and Activa engine was already ignited on which the appellant sat and they fled away from the spot. He has further stated that the deceased had sustained gun injuries over neck, abdomen and chest and he was taken to the hospital where he succumbed to the injuries. In para-9 he has admitted that a counter case was registered against him and other accused persons on account of inflicting injury on appellant. He has also admitted that on that day he was arrested. In para-10 he has denied that the appellant was lying in injured condition
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near Maudahapara Police Station. In cross-examination, he remained firm, but main allegation according to him is against the appellant. He has categorically stated that respondent No. 1 & 2 were present at the time of incident, but no any overt act is attributed against them.
20. PW-5 Sanjay Rakshel is not an eyewitness.
21. PW-6 Arun Yadav who is an eyewitness has stated that on 31.03.2016 at about 09:30-09:45 PM, he was in company of the deceased, Neeraj Sonkar, and Golu Rao near the house of the deceased. He further stated that at the same time the appellant, respondent no. 1 and 2 came there in white color Activa Bike. They took to Sumit (deceased) for 10-15 minutes, thereafter appellant fired three gun shots upon the deceased. He has stated in para-3 that respondent no. 1 and 2 were saying who is left and they were abusing in filthy language. Thereafter they ran away on their Bike. This witness has further stated that the deceased sustained three gun shots, one over his neck, one over chest and one over ribs and the deceased was taken to the hospital where he died. In cross-examination, this witness has remained firm.
This witness clearly made allegation against the appellant and defense has not asked any question regarding injury sustained by the appellant.
22. PW-18 Dr. S.K. Bagh has conducted postmortem. He found three bullet injuries and one lacerated wound over the body of the deceased. The first bullet injury was inflicted over left side of the chest admeasuring 1 cm x 0.5 cm; second bullet injury was inflicted 12 cm below left nipple admeasuring 1 cm x 1 cm and third bullet injury was inflicted in middle part of the chest between 4th & 5th ribs admeasuring
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1 cm x 1 cm and there was one lacerated wound over back below sacral region admeasuring 2 cm x 1.5 cm. His report is Ex.-P/.18 and he has opined that cause of death was excessive bleeding on account of gun shots. In cross-examination, there is nothing substantial.
23. PW-19 Inspector Manjulata Rathore is the Investigating Officer of the case. She has stated that on 13.03.2016 at about 09:15 to 09:30 pm, she got information about some quarrel between two parties and fire of gun shot. She has further stated that when she reached to the spot, she found appellant in injured condition and he was referred to hospital. She has further stated that some persons were present on the spot who narrated that on account of enmity, the appellant along with respondent no. 1 & 2 fired gun shots to the deceased Sumit Rakshel and the deceased was taken to Ramkrishna Hospital by his family members. She has further stated that she proceeded to Ramkrishna Hospital and on instance of PW-3 Annu @ Shrawan Rakshel, she registered Dehatinalsihi Ex.-P/3. In para-26, she has stated that from the place of incident one pistol, empty cartridges and one live cartridge were seized and the same were sent to the Ballistics Expert and other seized articles were sent for FSL. In para-28, she has admitted that the appellant was admitted to Medical College Hospital, Raipur and, thereafter, he was shifted to Ramkrishna Hospital from where he was discharged on 07.04.2016. This witness has further admitted that no article was seized from respondent no. 1 and 2.
Scrutiny of evidence of this witness would show that the prosecution has tried to make out a case that appellant had sustained
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knife injury on the date of incident as he was admitted to the hospital on 31.03.2016 and he was discharged on 07.04.2016. These facts have been admitted by this witness, but surprisingly the defense has not produced a single document such as copy of F.I.R., copy of MLC, copy of admission in the hospital and the injury sustained by the appellant etc. to substantiate the fact that there was free fight between two groups and in which appellant had sustained knife injury. This witness has not stated as to when she reached to the place of incident and sent the appellant to the hospital. The first document is Ex.-P/3 Dehatinalishi which was intimated by Annu @ Shrawan Rakshel (PW3) on 31.03.2016 at about 22:30 hours in Ramkrishna Care Hospital, Raipur. Dehatinalishi Ex.-P/3 was registered by PW-19 Manjulata Rathore on 31.03.2016 at about 22:30 hours in Ramkrishna Care Hospital, Raipur itself, in which there is no description regarding the injury sustained by the appellant. This witness on 01.04.2016 at about 00:30 hours seized pistol, three empty cartridges and one live cartridge from the spot and it is the very first document showing the presence of this witness at the spot vide Ex.-P/11. The next document is Ex.-P/12 dated 01.04.2016 at about 01:15 hours and this witness herself seized red colored Activa bearing registration No. CG 04 HW 6708 and white colored Activa bearing registration No. CG 04 HN 5340 vide Ex.-P/12 from the spot. And on 01.04.2016 at about 07:30 hours blood stained soil and blood cotton swab were taken by this witness vide Ex.-P/13. Thus, there is no evidence to infer that this witness had gone to the place of incident between 09-10:00 pm and not a single witness has stated in this regard.
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24. DW-1 Dr. Pradeep Patil who is a psychologist has stated that respondent no. 1 Washim Pasa was under his treatment and on 18.12.2015 he was examined by him. DW-2 Nitin Madhukar Meshram has stated that Washim Pasa was admitted for the first time on 07.10.2015 to 09.11.2015 for treatment and some documents in this regard have also been filed. These documents demonstrate that prior to incident Wahsim Pasa was suffering from some psychological disorder.
25. Ex.-P/50 is the FSL report and according to it on shirt 'C1' and vest 'C4' of the deceased, human blood was found. On cotton 'A' collected from the place of incident blood was found. Ex.-P/51 is the examination report given by the Assistant Director (Ballistics) & Scientist 'C' Central Forensic Science Laboratory, Hyderabad. According to this report, seized cartridges were fired from the seized pistol.
26. During the pendency of instant criminal appeal, counsel for the appellant has filed a scanned copy of judgment passed by VIIIth Additional Sessions Judge, Raipur in Sessions Trial No. 127/2016 whereby out of seven accused persons, some have been convicted for inflicting injuries to appellant and respondent no. 2 on 31.03.2016 at about 08:30 pm. This document cannot be taken on record as it is not a certified copy of the judgment and it has been filed on memo of submission and even proper application has not been moved as per the provisions laid down under the Cr.P.C. Further, in the entire criminal appeal there is no foundation with regard to injury sustained by the appellant during the course of incident. The appellant has not
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produced a single document to demonstrate that there was free fight between the parties on the date of incident i.e. on 31.03.2016. The appellant could not produce the copy of F.I.R., MLC or other relevant documents or evidence in his defence. The appellant has not tried to establish that any injury was sustained by him in the same occurrence. The appellant had to establish two things, first, that any injury was sustained by him and same was caused at the time of occurrence in question and secondly, that the injury on his person was of serious nature. However, both these facts have not been established or demonstrated by the appellant herein.
27. The argument advanced by the learned Senior Counsel regarding Exception 1 to Section 300 of IPC is also not available to the appellant because appellant had come to the place of deceased equipped with lethal weapon i.e. pistol, which shows that he was predetermined to commit murder of deceased. The appellant sustained any knife injury at the time of incident has not been demonstrated by the defence. The question of loss of self-control by grave and sudden provocation is a question of fact. Act of provocation and loss of self control, must be actual and reasonable. Two things must be satisfied to attract Exception 1 of Section 300 of IPC, firstly , there was intervening period for the passion to cool and for accused to regain dominance and control over his mind and, secondly , the mode of resentment should bear some relationship to the sort of provocation that has been given. The offender is presumed to possess general power of self control. The law with regard to Exception 1 to Section 300 of IPC has been considered by the Hon’ble Supreme Court in case of Dauvaram
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Nirmalkar Vs. State of Chhattisgarh reported in 2022 SCC Online
SC 955 which reads thus:-
10. Interpreting Exception 1 to the Section 300 in K.M. Nanavati v. State of Maharashtra ,10 t his Court has held that the conditions which have to be satisfied for the exception to be invoked are (a) the deceased must have given provocation to the accused; (b) the provocation must be grave; (c) the provocation must be sudden; (d) the offender, by the reason of the said provocation, should have been deprived of his power of self-control; (e) the offender should have killed the deceased during the continuance of the deprivation of power of self-control; and (f) the offender must have caused the death of the person who gave the provocation or the death of any other person by mistake or accident. For determining whether or not the provocation had temporarily deprived the offender from the power of self-control, the test to be applied is that of a reasonable man and not that of an unusually excitable and pugnacious individual. Further, it must be considered whether there was sufficient interval and time to allow the passion to cool. K.M. Nanavati (supra) succinctly observes:
“84. Is there any standard of a reasonable man for the application of the doctrine of “grave and sudden” provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.; in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision : it is for the court to decide in each case, having regard to the relevant circum-
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stances. It is not necessary in this case to ascertain whether a reasonable man placed in the position of the accused would have lost his selfcontrol momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence that the accused regained his self-control and killed Ahuja deliberately.
12. The question of loss of self-control by grave and sudden provocation is a question of fact. Act of provocation and loss of self-control, must be actual and reasonable. The law attaches great importance to two things when defence of provocation is taken under Exception 1 to Section 300 of the IPC. First, whether there was an intervening period for the passion to cool and for the accused to regain dominance and control over his mind. Secondly, the mode of resentment should bear some relationship to the sort of provocation that has been given. The retaliation should be proportionate to the provoca-
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tion.12 T he first part lays emphasis on whether the accused acting as a reasonable man had time to reflect and cool down. The offender is presumed to possess the general power of self-control of an ordinary or reasonable man, belonging to the same class of society as the accused, placed in the same situation in which the accused is placed, to temporarily lose the power of selfcontrol. The second part emphasises that the offender's reaction to the provocation is to be judged on the basis of whether the provocation was sufficient to bring about a loss of self-control in the fact situation. Here again, the court would have to apply the test of a reasonable person in the circumstances. While examining these questions, we should not be short-sighted, and must take into account the whole of the events, including the events on the day of the fatality, as these are relevant for deciding whether the accused was acting under the cumulative and continuing stress of provocation. Gravity of provocation turns upon the whole of the victim's abusive behaviour towards the accused. Gravity does not hinge upon a single or last act of provocation deemed sufficient by itself to trigger the punitive action. Last provocation has to be considered in light of the previous provocative acts or words, serious enough to cause the accused to lose his self-control. The cumulative or sustained provocation test would be satisfied when the accused's retaliation was immediately preceded and precipitated by some sort of provocative conduct, which would satisfy the requirement of sudden or immediate provocation.
28. With regard to Private Self Defence the Hon'ble Supreme Court in case of Sukumaran vs. State Represented by The Inspector of Police reported in (2019) 15 SCC 117 , while dealing with Sections 96
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to 106 IPC following the judgment passed in case of Darshan Singh vs. State of Punjab and Another, (2010) 2 SCC 333 held as under :-
32. This Court also examined this question in Darshan Singh v. State of Punjab and laid down the following 10 principles after analysing Sections 96 to 106 IPC which read as under: (SCC p. 351, para 58)
“( i ) Self-preservation is the basic human instinct and is duly recognised by the criminal jurisprudence of all civilised countries. All free, democratic and civilised countries recognise the right of private defence within certain reasonable limits.
( ii ) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.
( iii ) A mere reasonable apprehension is enough to put the right of self-defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.
( iv ) The right of private defence commences as soon as a reasonable apprehension arises and it is coterminous with the duration of such apprehension.
( v ) It is unrealistic to expect a person under assault to modulate has defence step by step with any arithmetical exactitude.
( vi ) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.
( vii ) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.
( viii ) The accused need not prove the existence of the right of private defence beyond reasonable doubt.
( ix ) The Penal Code confers the right of
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private defence only when that unlawful or wrongful act is an offence.
( x ) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self-defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.”
29. Likewise, in case of Sikandar Singh and Others vs. State of Bihar
(2010) 7 SCC 477 , the Hon'ble Supreme Court observed as under :-
“ 27. To put it pithily, the right of private defence is a defensive right. It is neither a right of aggression nor of reprisal. There is no right of private defence where there is no apprehension of danger. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger which is not self-created. Necessity must be present, real or apparent. (See Laxman Sahu v. State of Orissa 1986 Supp SCC 555)
28. Thus, the basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the State machinery is not readily available, that individual is entitled to protect himself and his property. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose.”
30. In the light of the judgments passed by the Hon'ble Supreme Court, if
we weigh and assess the evidence or material led by the defense, it is quite vivid that there was no apprehension to the appellant and no
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material has been placed to establish that right of private defence was available to the appellant, and, there was any emanate and reasonable danger to his life or limb, therefore, the case of right of self defence is not made out. Further right of self defence should not be of self creation, however from the evidence it appears that the defense is trying to create right of private defence. Further the appellant went to place of deceased equipped with pistol and thereafter fired three gun shots, which shows that he was predetermined and his act of murder of deceased was preplanned and there was no grave and sudden provocation. Therefore the act of the appellant does not fall within purview of Exception 1 to section 300 of IPC.
31. Most of the eyewitnesses have categorically stated that the present appellant had opened fire and shot three gun injuries to the deceased. The pistol was seized from the spot and from ballistics report (Ex.P/51), it is apparent that the same pistol was used in the occurrence and bullets were fired from the same pistol. The witnesses Golu Rao (PW-1), Neeraj Sonkar (PW-4) and Arun Yadav (PW-6) have supported the case of the prosecution; thus there is no room left to doubt the case. Therefore, we dismiss Criminal Appeal No. 1790/2018 preferred by appellant Tanzeel Raza @ Monu hereby affirming the judgment of conviction and order of sentence recorded therein.
32. From the close scrutiny of the evidence, it is also apparent that there was no common intention between appellant and respondent No. 1 & 2. The trial Court has rightly acquitted the respondent No. 1 & 2 extending them benefit of doubt from charges under Section 302 read with Section 34 of the I.P.C.
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33. The Hon’ble Supreme Court while dealing with the Section 378 and 386 of Cr.P.C in cases of appeal against acquittal, has held that if two vies are possible in a given case, the conviction ought not to be recorded. In the recent judgment of Hon’ble Supreme Court in matter of Jafarudheen & others Vs. State of Kerala 2022 SCC Online SC 495 their Lordships held as under:-
Scope of appeal filed against the acquittal
25. While dealing with an appeal against acquittal by invoking Section 378CrPC, the appellate court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.
34. Likewise, in the case of Mohan @ Srinivas @ Seena @ Tailor Seena
Vs. State of Karnataka 2021 SCC Online SC 1233 their Lordships of
the Hon’ble Supreme Court observed as under:-
20. Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more
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burdensome as there is a double presumption of innocence. Certainly, the court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal.
35. Considering the evidence in the light of the judgment passed by the Hon'ble Supreme Court, we do not find any force in the acquittal appeal filed by father of the deceased; therefore, acquittal appeal is also dismissed.
36. In the result, the criminal appeal and the acquittal appeal both are dismissed.
(Sanjay K. Agrawal) (Rakesh Mohan Pandey) Judge Judge
vatti
3 issues framed by the court
Was the appellant proved to have caused the homicidal death by firing three gunshots?
Was the appellant entitled to private defence or the benefit of grave and sudden provocation under Exception 1 to Section 300 IPC?
Did the acquittal of the two co-accused on the charge of murder with common intention warrant interference?
Colour shows how this judgement treated each authority
Dauvaram Nirmalkar Vs. State of ChhattisgarhApplied¶82
2022 SCC Online SC 955 · Who else cites this
Sukumaran vs. State Represented by The Inspector of PoliceApplied¶94
(2019) 15 SCC 117 · Who else cites this
Darshan Singh vs. State of Punjab and AnotherReferred¶96
Darshan Singh vs. State of Punjab and Another, (2010) 2 SCC 333 · Who else cites this
Sikandar Singh and Others vs. State of BiharApplied¶110
(2010) 7 SCC 477 · Who else cites this
Jafarudheen & others Vs. State of KeralaApplied¶121
Jafarudheen & others Vs. State of Kerala 2022 SCC Online SC 495 · Who else cites this
Mohan @ Srinivas @ Seena @ Tailor Seena Vs. State of KarnatakaApplied¶124
Mohan @ Srinivas @ Seena @ Tailor Seena Vs. State of Karnataka 2021 SCC Online SC 1233 · Who else cites this
6 provisions across 4 enactments
Mohd. Tanzeel Raza @ Monu
State of Chhattisgarh
Annu @ Shrawan Rakshel
Washim Pasa
Abid Khan
Sanjay K. Agrawal
Rakesh Mohan Pandey
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
